Docket No. 407
In the Matter of William Hart

Date: February 19, 1991

Disposition Agreement

 

            This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and William Hart (Mr. Hart) pursuant to section 5 of the Commission’s Enforcement Procedures.  This Agreement constitutes a consented to final Commission order enforceable in the Superior Court, pursuant to G.L. c. 268B §4(j).

            On July 19, 1989, the Commission initiated, pursuant to G.L. c. 268B §4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Mr. Hart.  The Commission has concluded its inquiry and, on August 1, 1990, by a majority vote, found reasonable cause to believe that Mr. Hart violated G.L. c. 268A §§6 and 23.

            The Commission and Mr. Hart now agree to the following findings of fact and conclusions of law:

            1.  At all times relevant to this matter, Mr. Hart was an employee of the Recreation Division of the Metropolitan District Commission (MDC).[1]  As such, Mr. Hart was, at all times here relevant, a state employee as defined in G.L. c. 268A §1(q).

            2.  At the times here relevant, Mr. Hart’s duties as an Executive Assistant and Deputy Director included advising his immediate superior and supervisor, MDC Director of Recreational Facilities and Programs Lou Rodrigues (Rodrigues) on policy, personnel, and purchasing matters.  In addition, Mr. Hart was responsible for supervising the operation of approximately twenty-four staffed MDC facilities, including the MDC’s Everett facility.  Mr. Hart worked out of the MDC’s Boston office.

            3.  Dolores Hart (Mrs. Hart) is Mr. Hart’s mother.  Mrs. Hart was a seasonal MDC employee[2] between 1974 and 1989.  Mrs. Hart was employed at the MDC prior to her son’s initial MDC employment.  For the last several years of her employment with the MDC, Mrs. Hart worked as a matron at the Everett facility, where her duties were to collect fees and to assist in keeping the facility clean.  Mrs. Hart’s matron position was the lowest grade in the MDC Recreation Division.  As a matron, Mrs. Hart was assigned to work a 40 hour week, during both the MCD’s summer and winter sessions.[3]

            4. In 1986, Mr. Hart directed all MDC Recreation Division payroll clerks to review their records from 1984 to 1986 and to recalculate vacation time for seasonal employees pursuant to a consistent formula in order to ascertain whether or not those employees were owed any vacation time.[4]  In all, the records of approximately several hundred MDC employees were reviewed to determine whether those employees were owed vacation time.  In connection with this review, Mr. Hart sent a memorandum, dated November 20, 1986, to all MDC Recreation Division payroll clerks advising that seasonal employees were to receive vacation time from that point on and were to be credited for vacation time owed to them from 1984.  As a result of this review, a significant number of MDC employees received “back” vacation time.  Included among those MDC employees receiving “back” vacation time was Mrs. Hart, who received 45 hours of “back” vacation time.  Mr. Hart’s supervisor, Director Rodrigues, was aware at that time that Mr. Hart’s mother was a seasonal employee with a financial interest in the review of seasonal employee vacation time being undertaken at Mr. Hart’s direction and under his supervision.

            5.  General Laws c. 268A §6, except as permitted by that section,[5] prohibits a state employee from participating as such in a particular matter in which to his knowledge an immediate family member has a financial interest.

            6. Mrs. Hart, as Mr. Hart’s mother, is a member of his immediate family as that term is used in G.L. c. 268A.

            7.  The recalculation of vacation time for MDC seasonal employees described above was a particular matter as that term is used in G.L. c. 268A.[6]

            8.  By directing and supervising the implementation of the program by which vacation time was recalculated for MDC seasonal employees, Mr. Hart was personally and substantially involved in that particular matter.  Therefore, Mr. Hart participated in that particular matter within the meaning of G.L. c. 268A.[7]

            9.  Mr. Hart knew that his mother had a financial interest in the recalculation of vacation time for MDC seasonal employees.[8]

            10.  By directing and supervising the implementation of a program by which vacation time was recalculated for MDC seasonal employees, including his mother, Mr. Hart participated as a state employee in a particular matter in which to his knowledge his mother had a financial interest.  In doing so, Mr. Hart violated G.L. c. 268A §6. 

            11.  During the time here relevant, Thomas Burke (Burke) was an MDC seasonal employee.  Burke began working for the MDC in July 1975.  Burke became the person in charge of the Everett facility in July 1987.[9]  As the person in charge of the Everett facility, Burke was responsible for the operation of the pool, ice skating rink, basketball courts, and the maintenance of the grounds, and was one of Mrs. Hart’s supervisors.  Unlike Mrs. Hart, Burke was a “seasonal employee” who worked throughout the year.

            12.  At all times relevant to this matter, Burke’s immediate superior and supervisor as Mystic District Supervisor of Recreational Facilities Gerry O’Neill (O’Neill).  O’Neill, in turn, reported directly to Assistant Director of Recreation William O’Brien (O’Brien).  O’Brien, in turn, reported to Mr. Hart and Director Rodrigues.

            13.  During the time that Burke was the person in charge of the Everett facility, there were conflicts between Burke and some of the employees he supervised concerning work assignments, schedules and job performance.  Among these conflicts were conflicts between Mrs. Hart and Burke, including, among others, those arising from Mrs. Hart’s parking her automobile in an unauthorized area of the Everett facility.  While at Everett, Burke was a supervisor who insisted that his subordinates do the jobs for which they were being paid and that they follow MDC rules and regulations.  Some of the Everett employees, including Mrs. Hart, were unhappy with Burke’s conduct as a supervisor and complained directly to Mr. Hart about Burke.[10]

            14.  In April 1988, Burke decided that it was necessary to transfer one of the Everett facility’s employees, Henry Rogowicz (Rogowicz), from the Everett facility because Rogowicz would not obey Burke’s instructions.  As a result, on April 15, 1988, Burke submitted a memorandum to the Stoneham District Office recommending Rogowicz’s transfer.  O’Neill and O’Brien concurred in Burke’s recommendation.  O’Brien, in turn, recommended Rogowicz’s transfer to Director Rodrigues, who orally approved the transfer.[11]  Consequently, by letter dated April 26, 1988, O’Brien advised Rogowicz that he was being transferred to the MDC’s Charles District facility in Cambridge.

            15.  Sometime after Director Rodrigues approved the transfer of Rogowicz, Mr. Hart interceded on Rogowicz’s behalf and told Rodrigues that he was “transfering the wrong guy.”[12]  Partly as a result of Mr. Hart’s intercession, and partly upon his own evaluation of the situation, Director Rodrigues reversed his decision to transfer Rogowicz.  On May 6, 1988, Mr. Hart telephoned Burke informing him that Rogowicz would not be transferred.

            16.  Sometime between May 6, 1988 and June 9, 1988, Mr. Hart orally recommended to Director Rodrigues that Burke be transferred from Everett.  Based in part upon Mr. Hart’s recommendation and in part upon his own evaluation of the situation at Everett, Rodrigues decided to transfer Burke from Everett.  On June 9, 1988, Burke received a letter from O’Brien informing Burke that Burke had been transferred to the MDC’s Cambridge facility.[13]

            17.  Upon Burke’s transfer, Rogowicz and another assistant manager took over the management of the Everett facility.  Shortly thereafter, Rogowicz died.  Subsequently, Mr. Hart recommended the reassignment of a family friend, to be the assistant manager at the Everett facility replacing Rogowicz.  The person recommended by Mr. Hart was reassigned in September 1988 to the assistant manager’s position at the Everett facility.  Subsequently, in November 1988, that assistant manager was designated as the person in charge of the Everett facility.

            18.  Section 23(b)(2) prohibits a state employee from knowingly or with reason to know using or attempting to use his official position to secure for himself or others an unwarranted privilege of substantial value not otherwise available to similarly situated people.

            19.  Section 23(b)(3) prohibits a state employee from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position, or the undue influence of any party or person.[14]

            20.  Mr. Hart used his MDC position to reverse the decision to transfer Rogowicz, and to influence the decision to transfer Burke instead.  This conduct secured unwarranted privileges for Mrs. Hart and Rogowicz in that it removed from the Everett facility a manager who Mr. Hart’s mother had complained to him about and allowed a friend of Mrs. Hart’s (Rogowicz) to remain at the facility as her supervisor.  These unwarranted privileges were of substantial value to Mr. Hart’s mother and to Rogowicz in that they affected the conditions of employment of both.

            21.  Therefore, by acting to reverse Rogowicz’s transfer and by recommending that his mother’s supervisor be transferred instead, Mr. Hart used his position to secure unwarranted privileges of substantial value for his mother and Rogowicz, not otherwise available to similarly situated people.  In so doing, Mr. Hart violated §23(b)(2).

            22.  Even if the Burke transfer were on the merits, by acting to reverse the Rogowicz transfer and by participating significantly in the Burke transfer, all without fully disclosing to his appointing authority the extent of his mother’s interest in those matters.  Mr. Hart created the appearance that he was giving his mother and a friend of his mother preferential treatment.  By so acting, Mr. Hart acted in a manner which would cause a reasonable person, knowing the relevant facts, to conclude that he could be unduly influenced by kinship in the performance of his official duties.  In so doing, Mr. Hart violated §23(b)(3).[15]

            In view of the foregoing violations of G.L. c. 268A by Mr. Hart, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the bases of the following terms and conditions agreed to by Mr. Hart:

                      1.  that Mr. Hart pay to the Commission to sum of five hundred dollars ($500.00) as a civil penalty for violating G.L. c. 268A §6;

                      2.  that Mr. Hart pay to the Commission the sum of one thousand dollars ($1,000.00) as a civil penalty for violating G.L. c. 268A §23;

                      3.  that Mr. Hart will act in conformance with the requirements of G.L. c. 268A in his future conduct as a state employee; and

                      4.  that Mr. Hart waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this Agreement in any related administrative or judicial proceeding to which the Commission is or may be a party.  



[1] Mr. Hart was first appointed as Assistant Director of Development and then as an Executive Assistant to the Director of the Recreation Division.  Mr. Hart’s title was subsequently changed to that of Deputy Director.

 

[2] A seasonal employee is generally someone who works either the summer, winter or both seasons.  However, some seasonal employees work year round.

 

[3] The MDC’s Everett facility provides the public with swimming during its summer season and ice skating during its winter season.  The summer season is approximately ten weeks long and the winter season is approximately seventeen weeks long.

 

[4] It is Mr. Hart’s contention that he so directed this review of records by the payroll clerks in order that the MDC would be in compliance with negotiated collective bargaining agreements to which the MDC was a party, and that he so acted in consultation with the MDC Labor Relations office.

 

[5] None of the exceptions apply here.

 

[6]  “Particular matter” refers to any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.  G.L. c. 268A, §1(k).

 

[7] “Participate” means to participate in agency action or in a particular matter personally and substantially as a state, county  or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.  G.L. c. 268A §1(j).

 

[8] “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the population.  See Graham v. McGrail, 370 Mass. 133, 345 N.E. 2d 888 (1976).  This definition has embraced private interests, no matter how small, which are direct, immediate or reasonably foreseeable.  See EC-COI-84-89.  The interest can be affected in either a positive or negative way.  See EC-COI-84-96.

 

[9] Burke’s official job title remained that of Assistant Manager for purposes of sick time, vacation time and personal days.  Burke, however, received extra compensation for being the person in charge of the Everett facility.

 

[10] Burke’s performance as the person in charge of the Everett facility was satisfactory to his supervisor O’Neill and to O’Brien.  O’Neill and O’Brien’s March and June, 1988 evaluations of Burke’s performance as the person in charge of the Everett facility rated Burke as meeting or exceeding all performance criteria.

 

[11] Director Rodrigues has the ultimate authority as to all such transfers.

 

[12] Rogowicz and Mrs. Hart were friends in the context of their work at the Everett facility.

 

[13] Although O’Brien wrote the letter to Burke informing him of his transfer, O’Brien was opposed to Burke’s reassignment and advised Rodrigues against it.  Burke’s transfer resulted in a cut in Burke’s pay and a longer commute for Burke than his former assignment at Everett.  Burke resigned from the MDC several months after he was transferred.
 

[14] Section 23(b)(3) provides further that, “It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.” No such disclosure was made by Mr. Hart in connection with his actions affecting his mother, Burke or Rogowicz.

 

[15] Pursuant to §23(b)(3), in order for Mr. Hart to lawfully participate in a personnel matter involving his mother’s direct supervisor, he would have to disclose in writing to his appointing authority all of the circumstances relevant to that situation, including any history of friction between his mother and the supervisor, before so participating.  This disclosure, in turn, would have been required to be kept as a public record by Mr. Hart’s appointing authority pursuant to G.L. c. 268A, §24.  (Mr. Hart would also have to meet the disclosure and exemption requirements of G.L. c. 268A §6, to the degree that the matter affected his mother’s financial interests.)  The Commission does not view these disclosures as mere technicalities.  Such disclosures create a public record regarding the relevant facts; and the process of having to disclose facts in writing to the appointing authority, and the appointing authority having to consider carefully that disclosure, is well designed to avoid biased, ill-considered decision making.  See In the Matter of John Hanlon, 1986 SEC 253.